DPP v Sean Kenny

• Jurisdiction: Ireland
• Judge: MR. JUSTICE HERBERT
• Judgment Date: 13 October 2006
• Neutral Citation: [2006] IEHC 330
• Court: High Court
• Docket Number: [607 SS/2006]
• Date: 13 October 2006

[2006] IEHC 330

THE HIGH COURT

DUBLIN

[607 SS/2006]

DPP v KENNY

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

-and-

SEAN KENNY

Accused

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S6(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2002 S23

DPP v CORMACK 1999 1 ILRM 398

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 1961 S49(6)(B)

ROAD TRAFFIC ACT 1961 S50(4)

DPP v CORBETT 1992 ILRM 674

B v DPP 1997 3 IR 140

STATE, DUGGAN v EVAN S 1978 112 ILTR 61

DPP v COLLINS 1981 ILRM 447

DPP v CLIFFORD 2002 4 IR 398

PIERSE ROAD TRAFFIC LAW VOL 1 P789 (2004)

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S450

STAFFORD v ROADSTONE LTD 1980 ILRM 1

BRADLEY v MEATH CO COUNCIL 1991 ILRM 179

STATE, SHEEHAN v GOVT IRELAND 1987 IR 550

T v T 1989 IR 29

FITZGERALD v DPP & AG 2003 3 IR 247

ROAD TRAFFIC ACT 1961 S50(6)(B)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 ART 6

PETISSIER & SASSI v FRANCE 2000 30 EHRR 315

Abstract:

Criminal law - Criminal procedure - Case stated - Drink driving - Alternative verdicts - Discretionary powers -

Road Traffic Acts 1961 to 1994

: The accused was alleged to have blocked traffic in the middle of a public road and was requested by a Garda to reverse his vehicle 50 yards out of the way and was subsequently arrested for drink driving pursuant to s. 49(4) of the Road Traffic Acts 1961 to 1994. The accused was not cautioned before questioning and his evidence was excluded by the District Judge as a result. The District Judge stated a case as to whether he had a discretion not to convict the accused contrary to s. 50(4) of the Road Traffic Acts 1961-1994, as an alternative verdict.

Held by Herbert J. that the District Judge had no jurisdiction to dismiss the case on the ground that the State had brought the prosecution under s. 49(4) of the Road Traffic Acts 1961 to 1994 and that the Judge was not correct in law in holding that he had a discretion not to convict the accused.

Reporter: E.F.

1 JUDGMENT DELIVERED BY MR. JUSTICE HERBERT ON FRIDAY, 13TH OCTOBER 2006

MR. JUSTICE HERBERT

2 THE PROCEEDINGS COMMENCED ON FRIDAY, 13TH OCTOBER 2006 AS FOLLOWS:

3 MR. JUSTICE HERBERT THEN GIVES HIS JUDGMENT AS FOLLOWS:

4 MR. JUSTICE HERBERT: This is an appeal by way of a Case Stated on a point of law pursuant to Section 2 of The Summary Jurisdiction Act, 1857, as extended by Section 51 of The Courts (Supplemental Provisions) Act,1961. The case is stated at the behest of the Director of Public Prosecutions, the Prosecutor in the matter.

5 The facts are set out by Judge Aeneas McCarthy, a Judge of the District Court, assigned to the Dublin Metropolitan District as follows:

6 The Defendant, Sean Kenny was charged that:

7 On 22nd July 2005 at Tyrellstown Way, Blanchardstown, Dublin 15, in the said District Court Area of Dublin Metropolitan District, he drove a mechanically propelled vehicle, registered number 02 D 60097, in a public place while there was present in his body a quantity of alcohol such that within hours after so driving, the concentration of alcohol in his breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath. Contrary to Section 49( 4) and 6(a) of the Road Traffic Act,1961, as inserted by Section 10 of the Road Traffic Act, 1994, as amended by Section 23 of the Road Traffic Act, 2002.

8 On 26th October, 2005, the defendant appeared before District Judge McCarthy on this charge. The prosecutor was represented by Mr. R. O'Neill, Senior Prosecution solicitor. The Defendant was represented by solicitor and counsel.

9 Garda Eoghan Clerkin of Blanchardstown Garda Station gave evidence that on 22nd July 2005 at 1:20 a.m., he observed a motor car 02 D 60097 at Tyrellstown Way, Blanchardstown, Dublin 15, a public place, stopped in the middle of the road, blocking all routes of traffic, with its headlights on. He signalled to the driver to move his vehicle off the road and turn off his headlights. Garda Clerkin signalled to the Accused to move the car, and the driver reversed the vehicle 50 yards out of the way. The driver gave his name as Sean Kenny of 225, Cappagh Road, Finglas, Dublin 11. Garda Clerkin asked the driver why he was parked in the middle of the road. The Accused's Counsel objected in advance to Garda Clerkin giving this evidence, and I ruled I would not permit the Accused's explanation as to why he was parked in the middle of the road into evidence, since the accused had not been cautioned.

10 On behalf of the prosecution, Mr. O'Neill cited the case of DPP -v- Paul Cormack the (ex-tempore) Judgment delivered on the 22nd day off January 1999 by Judge O'Flaherty. However, having considered the submission made, I ruled that I was excluding the said evidence. Garda Clerkin then stated that he got a small smell of alcohol from the driver and he appeared to be drunk. Garda Clerkin asked the driver to step out of the vehicle. He formed the opinion that the Accused was intoxicated and he was unsteady on his feet and had a very strong smell of alcohol. Garda Clerkin said at 1:25 a.m., that he was of the opinion that the Accused was under the influence of an intoxicant to render him incapable of having proper control of a vehicle in a public place, and as a result he was arresting him under Section 49(8) for an offence under Section 49(2),( 3), and (4) of the Road Traffic Acts1961–1994.

11 He told the Accused in simple terms he was arresting him for drink driving. He then cautioned the Accused. The Accused was arrested at 1:25 a.m. and conveyed to Blanchardstown Garda Station, arriving at 1:30 a.m. Garda Clerkin was present when at 1:33 a.m. the Accused was given his notice of rights (Form C72) by Sergeant Carr, and his details were entered into the Custody Record. Garda Clerkin said that Garda Olive Crowe was introduced to the Accused and that she explained to him she would be processing him on the Lion Intoxilyzer 6000IRL. Garda Clerkin said at 1:55 a.m. he accompanied Garda Crowe to the Intoxilyzer Room. He was present when the Accused provided two specimens at 2:01 a.m. and 2:03 a.m., with a reading of 66mg of alcohol per 100ml of breath. Garda Clerkin handed the Section 17 Statement into court. A copy of the Section 17 Statement appears at Appendix 2 of this Case Stated. Garda Clerkin gave evidence that he was also present when the accused was charged by Sergeant Carr at 2:35 a.m..

12 Garda Olive Crowe of Blanchardstown Garda Station was the next witness. Garda Crowe gave evidence that she was on patrol with Garda Eoghan Clerkin on 22nd July 2005 in the Tyrellstown area of the Blanchardstown District. At 1:20 a.m. she observed a vehicle parked in the middle of the road with its headlights on. She explained that Garda Clerkin indicated to the driver to move his car out of the way and that he also asked the driver to turn off his dipped headlights. She said Garda Clerkin got out of the patrol car and approached the driver to ascertain, she presumed, what was going on. Shortly after that Garda Clerkin returned to the Patrol Car and he informed Garda Crowe that he had arrested the driver for drunk driving. She explained to the court her training in the operation of the Lion Intoxilyzer and gave an explanation for the 20-minute period of observation. She also gave evidence in relation to observing the Accused for 20 minutes. She introduced herself to the Accused and formed the opinion that he had consumed an intoxicant.

13 She informed him she would be processing him by way of the Lion Intoxilyzer 6000IRL. She informed him that the Lion Intoxilyzer is an apparatus designed for determining the concentration of alcohol in the breath, and that she was obliged to observe him for a period of 20 minutes to ensure he consumed nil by mouth. She began her observation of the Accused at 1:35 a.m to 1:55 a.m.. During the period of observation the Accused consumed nil by mouth. At 1:55 a.m. she brought the accused, accompanied by Garda Clerkin, to the room which contains the Lion Intoxilyzer 6000IRL. On entering the room, she noted the ambient temperature and humidity in her notebook. At 1:59 a.m. she made the following legal requirement for the Accused:-

"I am of the opinion that you have consumed an intoxicant, therefore, pursuant to Section 13(1)(a) of the Road Traffic Act,1994. I am now requiring you to provide two specimens of your breath by exhaling into this apparatus, designed for determining the concentration of alcohol in the breath. Failure or refusal to comply with my requirement or failure or refusal to comply with my requirement outlined by me is a specific offence under Section 13(2) of the Road Traffic Act, 1994.

Penalty on summary conviction is liable to a fine not exceeding €2,500 or to a term of imprisonment not exceeding 6 months, or both."

14 Garda Crowe then explained in laymans terms to the Accused this requirement. She also informed the Accused...